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nounce the act a wrong done. The judgment of the law is wholly different. Private owners are merely permitted users of property, all of which belongs to the public, which may resume the full rights of ownership at will. There is in consequence nothing of a wrong in the taking. The public has, however, promised through a constitutional or statutory enactment (usually both), that, if they take, they will give just compensation. This founds a legal cause of action, which would not otherwise exist. The analogue thus becomes that of a supposititious sale, with no price named, and the offer by the vendee of a price which the seller has accepted. If there had been a contract price, and the payment to the vendor of a less price, a wholly different question would be presented. Here there was no price named, and the sole complaint of the vendor is that the pressure of his financial necessities induced him to accept the payment of a less sum than he believed (and as we find) to have been the sum to which he was legally entitled.

The limits of an opinion (which we have already passed) forbid the discussion of the cases to which we have been referred. We, because of this, content ourselves with a part listing of them, accompanied by the statement that we find no warrant in any of them for more than a judgment for nominal damages in favor of the plaintiffs.

We take the space to add the comment that a part of the argument of the defendant upon the question of duress, and some of the cases cited, do not face the case presented. The counsel for plaintiffs does not assert that there was any duress exerted in the appropriation of the coal, or that there was anything unlawful in the taking. What he does contend, and that very vigorously, is that the acceptance of the payment which is set up as the receipt of just compensation was not a voluntary act, but induced by a coercion which was in effect legal duress. Some of the cases are Swift Co. v. United States, 111 U. S. 22, 4 S. Ct. 244, 28 L. Ed. 341; Robertson v. Frank Bros. Co., 132 U. S. 17, 10 S. Ct. 5, 33 L. Ed. 236; Cleaveland v. Richardson, 132 U. S. 318, 10 S. Ct. 100, 33 L. Ed. 384; Hartsville Oil Mill v. United States, 271 U. S. 43, 46 S. Ct. 389, 70 L. Ed. 822.

It may be further stated, in order to make sure of the fact situation to which the ruling now made applies, that the application of many of the cases cited to us by defendant is not seen. When a government does not take, either directly for its own use or ultimately for the use of others, but merely sends out

a regulating price, at which commodities are directed to be dealt in by dealers, we can readily understand why the government is not answerable, because some one has sold at a less price than, without the regulation, might have been secured. Here, however, the United States actually "took" the coal of the plaintiffs. Certainly the "divertees" did not "take" it, because they had neither the legal right nor the physical power to so do. To argue, as counsel for the defendant seems to do, that the United States, when it took, did not take, because the taker then said it was not "taking," but merely "diverting," is to fly squarely in the face of Davis v. Newton, 267 U. S. 292, 45 S. Ct. 305, 69 L. Ed. 617.

We have ruled the two causes on the assumption that the plaintiffs have received payment for their coal, if they are not at liberty to treat the sum received as a payment on account of just compensation. There are some expressions to be found which might mean that this is not true of the whole of the several claims made. This, however, may be set right in the formal judgments entered. To us the real case is that of a sale with no price named; the rendering of a bill at a price; the refusal by the vendee to pay this price, or any sum on account, reserving the question of the proper price; the offer by the vendee of a price, with acceptance by vendor and payment. Had the payment been by the party against whom the cause of action was asserted, the judgment should go for defendant. As, however, here the payment was not by the defendant, it goes merely to the damnum, leaving the cause of action untouched, and the judgment properly is for the plaintiffs for nominal damages.

with this opinion may be submitted, and on Præcipes for judgments in accordance them appropriate judgments will be entered.

UNITED STATES v. ONE NASH AUTO et al. District Court, D. Montana. December 2,

1927.

No. 1292.

1. Customs duties 133(6)-Claimant of automobile, in case of probable cause of forfeiture under revenue law, has burden of absolving auto from culpability (Tariff Act of 1922, tit. 1, § 1, Schedule 8, par. 805 [19 USCA § 121]; 19 USCA § 525).

Where probable cause is shown for forfeiture of automobile for violation of Tariff Act of 1922, tit. 1, § 1, Schedule 8, par. 805 (19 USCA § 121), for importation of beer without invoice and payment of duties, claimants of au

23 F.(2d) 126

tomobile have burden, under 19 USCA § 525, of absolving auto from culpability.

2. Customs duties

130(6)-Owner's lack of knowledge of intended unlawful importation of beer in automobile held no defense in forfeiture action (19 USCA § 498; Tariff Act 1922, tit. 1, § 1, Schedule 8, par. 805 [19 USCA § 121]).

Under 19 USCA § 498, owner's lack of knowledge of intended offense against Tariff Act 1922, tit. 1, § 1, Schedule 8, par. 805 (19 USCA § 121), by importation of beer without invoice or payment of duties, constitutes no defense to forfeiture of automobile, where chauffeur had knowledge thereof and participated

therein.

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4. Criminal law 29-Government may elect volved in criminal transaction (National Prohibition Act 1921, § 5 [27 USCA § 3]).

between several offenses and remedies in

Since criminal transaction may involve several offenses and remedies, government in prosecution may elect between them, as recognized by National Prohibition Act 1921, § 5 (27 USCA § 3), providing that analogous laws do not effect repeal, unless in direct conflict, and that government's election is exhausted only by conviction under some one thereof.

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27 USCA § 40, requiring arresting officer to proceed against person arrested, and court to order sale of conveyance, on conviction of violation of National Prohibition Act, held not to deprive government of its right of election to proceed under tariff laws, since mandate requires only charge against accused.

6. Intoxicating liquors 255-Disposition of conveyance under Prohibition Act becomes mandatory only on conviction thereunder (Na

tional Prohibition Act, tit. 2, § 26 [27 USCA § 40]).

Disposition of conveyance of accused for transportation of liquor by National Prohibition Act, tit. 2, § 26 (27 USCA § 40), becomes mandatory only on accused's conviction of violation of National Prohibition Act.

Forfeiture Libel. Proceeding by the United States against one Nash auto and others. Decree for the United States.

Wellington D. Rankin, U. S. Atty., and L. V. Ketter, Asst. U. S. Atty., both of Helena, Mont.

Ronald Higgins, of Missoula, Mont., for libelees and claimants.

BOURQUIN, District Judge. The auto engaged in transportation of Canadian beer smuggled into this country, with its occupants, was arrested and seized by national prohibition officers and by them delivered to the customs officers. Thereafter the said occupants plead guilty to the offense of knowingly and feloniously transporting the smuggled merchandise, and this libel was filed to adjudge the auto forfeited by reason of this violation of the import and customs laws, viz. importation without invoice and payment of duties.

The owners defend, for that they had no knowledge that, contrary to their instructions, the chauffeur, their employee, intended to commit any such offense, and that they are entitled to the benefit of section 26, title 2, of the National Prohibition Act (27 USCA § 40). The Tariff Act of 1922 imposes a tax or duty of $1 per gallon upon beer imported. 42 Stat. 897, par. 805 (19 USCA § 121, Schedule 8, par. 805).

[1] Probable cause appears, and the burden of proof upon claimants to absolve the auto from culpability (title 19, section 525, U. S. C. [19 USCA § 525]) has not been sustained. See U. S. v. One Oakland Auto (D. C.) 9 F. (2d) 636.

[2] As the auto is the offender, the owners' lack of knowledge of the intended offense is no defense, their chauffeur having knowledge and participating. See title 19, section 498, U. S. C. (19 USCA § 498). [3] The laws providing for the forfeiture of conveyances engaged in smuggling are as old as the government. See title 19, sections 482, 483, U. S. C. (19 USCA §§ 482, 483). As they are not in direct conflict with the National Prohibition Act, the latter does not repeal them by implication. See U. S. v. One Ford Coupé, 272 U. S. 332, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1025. [4] As a matter of fact, the subsequent Tariff Act of 1922 recognizes their continuing existence, and fortifies them. A criminal transaction may involve several offenses and remedies, whereupon in prosecution the government may elect between them. U. S. v. One Ford Coupé, supra; 1 Bishop's Criminal Law, §§ 778-791. This is recognized by the National Prohibition Act (title 27, section 3, U. S. C. [27 USCA § 3]) in its provision that of analogous laws is no repeal, unless in direct conflict, and that the government's election is exhausted only by a conviction under some one of them.

[5] That section 26, title 2 (title 27, section

40, U. S. C. [27 USCA § 40]), prescribes a duty to the arresting officer to "proceed against the person arrested," and provides that, upon the latter's conviction of violation of the National Prohibition Act, the court shall order sale of the conveyance "unless good cause to the contrary is shown by the owner," does not, it is believed, deprive the government of this right of election. For the mandate of section 26 is no more than the like in the subsequent customs law (title 19, section 481, U. S. C. [19 USCA § 481]), or any other law, viz. to lay a charge against accused.

Thereafter the course of proceeding rests solely with the government's representative, the district attorney. In its behalf, he may prosecute or not, and may elect by virtue of which of several applicable laws he will proceed. With this, his discretion, section 26 does not assume to interfere. In any event, the neglect of the prohibition enforcement officers to proceed cannot absolve the customs officers from their duty to prosecute.

Moreover, the one law may be violated, though the other be strictly pursued, and in the case at bar it well may be was no violation of the National Prohibition Act.

[6] In conclusion, the disposition of the convayance by section 26 prescribed becomes mandatory only upon accused's conviction of violation of the National Prohibition Act. Port Gardner Inv. Co. v. U. S., 272 U. S. 567, 47 S. Ct. 165, 71 L. Ed. 412. In this case that contingency has not happened. Decree for libelant.

COHEN v. TEXAS CO

Practice Act N. Y. §§ 1513, 1514, authorizing additional allowance, court may consider amount involved and complexity and intricate nature of facts, and also whether questions of fact called for more than ordinary investigation in preparation for trial, amount of labor performed by counsel, difficulties in preparing for trial, as well as expense likely in case new action is brought after discontinuance.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Difficult.] 3. Dismissal and nonsuit 37-Action based on oral contract requiring investigation of witnesses in foreign countries held "difficult and extraordinary," justifying additional allowance on voluntary dismissal (Civil Practice Act N. Y. §§ 1513, 1514).

Action to recover $100,000 for services alleged to have been rendered under oral contract, requiring personal investigation of witnesses situated in Palestine, Syria, Egypt, France, law, held "difficult and extraordinary," within and Italy, and involving difficult questions of meaning of Civil Practice Act N. Y. §§ 1513, 1514, so as to justify additional allowance to defendant on granting plaintiff's motion for dis

continuance.

At Law. Action by Frank Cohen against the Texas Company. On plaintiff's motion for discontinuance, and defendant's motion for additional allowance. Discontinuance

granted, on conditions specified in opinion.

Whitman, Ottinger & Ransom, of New York City, for plaintiff.

Miller, Otis & Farr and T. K. Schmuck, all of New York City, for defendant.

MOSCOWITZ, District Judge. During the trial of this action, which was had before court and jury, and at which plaintiff testified at great length, plaintiff asked leave to discontinue the action. The court ruled that any recovery to which the plaintiff might be

District Court, E. D. New York. November 30, entitled was limited by paragraph 2 of the

1927.

No. 2131.

I. Dismissal and nonsuit 37-Additional allowance may be granted defendant in case of voluntary discontinuance of difficult and extraordinary action (Civil Practice Act N. Y. §§ 1513, 1514).

Additional allowance under Civil Practice Act N. Y. §§ 1513, 1514, to indemnify successful party for expense incurred in prosecution of defense beyond those usually necessary, may be granted defendant in case of voluntary discontinuance, where action is difficult and extraordinary.

2. Dismissal and nonsuit 37-Court, in determining whether action is "difficult and extraordinary," within law authorizing additional allowance, may consider amount involved and nature of facts (Civil Practice Act N. Y. §§ 1513, 1514).

In determining whether action is "difficult and extraordinary," within meaning of Civil

first bill of particulars to services performed by the plaintiff on behalf of the defendant in Syria and Palestine subsequent to the making of the alleged contract in suit. Thereupon the plaintiff's counsel stated that, if this ruling was adhered to, the plaintiff would discontinue the action, since the plaintiff was surprised by the ruling. The defendant's counsel thereupon consented that the complaint and bill of particulars be amended to enable the plaintiff to give evidence of and assert the claim which the plaintiff desired to make. Despite this, plaintiff's counsel moved to discontinue the action.

The court took under advisement motion of the defendant for an additional allowance. An additional allowance is required by virtue of the provisions of sections 1513 and 1514 of the New York Civil Practice Act, which provide:

23 F.(2d) 128

"Sec. 1513. In an action brought to foreclose a mortgage upon real property or for the partition of real property, or in a difficult and extraordinary case, where a defense has been interposed in an action, or, except in the first and second judicial districts, in a special proceeding by certiorari to review an assessment under article 13 of the tax law, the court, in its discretion, also may award to any party a further sum, as follows:

"1. In an action to foreclose a mortgage, a sum not exceeding two and one-half per centum upon the sum due or claimed to be due upon the mortgage, nor the aggregate sum of two hundred dollars.

"2. In any action or special proceeding specified in this section, where a defense has been interposed, or in an action for the partition of real property, a sum not exceeding five per centum upon the sum recovered or claimed, or the value of the subject-matter involved."

(Former section 1475; renumbered section 1513 by Laws 1921, c. 199, § 14; Code section 3253.)

"Sec. 1514. But all the sums awarded to the plaintiff as prescribed in section fifteen hundred and twelve of this act, or to a party or two or more parties on the same side as prescribed in subdivision four of section fifteen hundred and ten of this act, and in subdivision second of the last section, cannot exceed in the aggregate two thousand dollars."

(As amended by Laws 1922, c. 219, March 24, Laws 1921, c. 199. Former section 1476; renumbered section 1514 by Laws 1921, c. 199, § 14. Code section 3254.)

[1] The purpose of this statute is to indemnify the successful party for the expense that he may incur in its prosecution or defense beyond those which are usually necessary. If the action is difficult and extraordinary, such allowance may be granted in case of voluntary discontinuance. Jermyn v. Searing et al., 139 App. Div. 116, 123 N. Y. S. 832; Kilmer v. Evening Herald Co., 70 App. Div. 291, 75 N. Y. S. 243.

[2] The question for consideration is whether this action is difficult and extraordinary within the meaning of the statute. The court may consider the amount involved and the complexity and intricate nature of the facts involved. American Fruit Product Co. v. Ward, 113 App. Div. 319, 99 N. Y. S. 717, affirmed 190 N. Y. 533, 83 N. E. 1122, 192 N. Y. 588, 85 N. E. 1105; Boyd v. Daily, 85 App. Div. 581, 591, 83 N. Y. S. 539, affirmed 176 N. Y. 613, 68 N. E. 1114; Miller v. Clary, 147 App. Div. 255, 267, 127 N. Y. S. 897, 131 N. Y. S. 1129, 133 N. Y. S. 1101, 23 F. (2d)-9

modified on other grounds 210 N. Y. 127, 103 N. E. 1114, L. R. A. 1918E, 222, Ann. Cas. 1915B, 872.

The court may also consider whether the questions of fact called for more than an ordinary investigation in preparation for trial, the amount of labor performed by counsel in the preparation of the case, the difficulties in preparation for trial, as well as the expense that the defendant is likely to be put to if a new action is brought. [3] This action is to recover $100,000 for services alleged to have been performed by the plaintiff during the period from April, 1921, to March 1, 1923. Although some of the transactions were had in New York, most of them took place in Palestine, Syria, Egypt, Turkey, and the island of Cyprus. The testimony of the plaintiff is unsatisfactory and not worthy of credence. Necessarily the facts of plaintiff's alleged services were known only to him, and not to the defendant. By reason of this action, defendant has twice brought two witnesses here, one from London, England, and one from Rio de Janeiro. While it is true that the depositions of these witnesses probably could have obtained, it was necessary for the witnesses to appear and testify, as plaintiff's alleged services in Egypt, Turkey, and the island of Cyprus were known only to him, or to his witnesses, whose identities were unknown to the defendant. It is apparent that, if this case is retried, the defendant's witnesses must be brought to New York again.

The affidavits disclose that considerable time was necessarily expended in the preparation of the defense, and that hundreds of documents were examined; that investigations of witnesses were required to be personally made in Palestine, Syria, Egypt, France, and Italy. Difficult questions of law were involved. The plaintiff testified that, although a written contract was executed between his corporation and the defendant, this contract, which was important to him and for the alleged breach of which the suit was instituted to recover $100,000 for services, was oral.

Defendant offered to waive any defense as to the bill of particulars, so that the trial could proceed. Plaintiff evidently realizes the weakness of his case in insisting upon a discontinuance of the action, the sole purpose of which being apparently to harrass and annoy the defendant. I have concluded that this is a difficult and extraordinary case, within the meaning of the authorities. The action may be discontinued upon the following conditions; (e) having been consented to by the defendant:

"(a) That plaintiff pay defendant its costs and disbursements taxable by law, which shall include an extra allowance to defendant amounting to two thousand dollars ($2,000.00), pursuant to sections 1513 and 1514 of the Civil Practice Act of New York, which sum is hereby awarded, the case being a difficult and extraordinary one within the meaning of said sections.

"(b) That unless said costs, including said extra allowance, are paid by the plaintiff within 30 days from the entry of this order, the defendant may move for an order or judgment dismissing the plaintiff's case herein upon the merits.

"(c) That all depositions taken herein on behalf of the defendant may be available for use by the defendant in any subsequent action between the same parties.

"(d) That unless and until said costs including said extra allowance are paid by the plaintiff herein, no further or other action may be brought by the plaintiff against the defendant on the same cause of action."

MAHONEY v. INTERNATIONAL ELEVAT.
ING CO., Inc., et al.

1927.

Seamen 2-Stevedore of American concern, injured while loading foreign ship in American port, held entitled to benefit of act as American seaman (Jones Act, § 33 [46 USCA $ 688]).

York City, of counsel), for Ellerman's Wilson Line, Incorporated.

MOSCOWITZ, District Judge. This is an action brought by Bridget Mahoney, as administratrix, to recover damages for the death of her husband, a stevedore, against the International Elevating Company, Inc., his employer, and the Ellerman & Wilson Line, Limited, owners and operators on the vessel upon which the accident happened. The plaintiff's intestate was an American citizen, employed as a stevedore by the International Elevating Company, Inc., a corporation existing under the laws of New Jersey. He was working on board a foreign vessel moored at Hoboken, N. J., owned by Ellerman & Wilson, Limited, a corporation existing under the laws of Great Britain. He was killed in the course of his employment as a stevedore.

The case was tried and submitted to the jury. The court charged that the Jones Act (46 USCA § 688 [Comp. St. § 8337a]) applied to the International Elevating Company, Inc., and that the New Jersey death statute (2 Comp. St. 1910, p. 1907, §§ 7-9) and the established rules of law concerning the duties that the owners of vessels owe to stevedores applied to Ellerman & Wilson

District Court, E. D. New York. November 14, Line, Limited, the owners of the ship. The jury awarded $50,000 damages to the plaintiff. Motions to set aside the verdict were made by the defendants on the usual grounds, and also upon the ground that the verdict was excessive. The court denied all motions of the International Elevating Company, Inc., except that decision was reserved on the motions that the court erred in submitting the case to the jury under the Jones Act; and, second, upon the ground that the verdict was excessive. The court denied the motions as to Ellerman & Wilson, Limited, on all grounds except that it reserved decision on the motion to set aside the verdict as excessive.

Jones Act, § 33 (46 USCA § 688; Comp. St. § 8337a), applies in case of a stevedore who received injuries on a foreign vessel in an American port, while engaged in loading or unloading the same as employee of an American stevedoring concern.

At Law. Action by Bridget Mahoney, as administratrix of the estate of Michael Mahoney, deceased, against the International Elevating Company, Inc., and Ellerman's Wilson Line, New York, Inc., with Ellerman & Wilson, Limited, impleaded. On motions to set aside verdict. Denied on condition of stipulation for reduction of amount.

Harry S. Austin, of New York City, for plaintiff.

William E. Lowther, of New York City (Benjamin O. Loder, of New York City, of counsel), for defendant International Elevating Co., Inc.

Kirlin, Woolsey, Campbell, Hickox & Keating, of New York City (Vernon S. Jones, and Raymond Parmer, both of New

The law is well settled that a stevedore is a seaman within the purview of the Jones Act. International Stevedoring Co. v. Haverty, 272 U. S. 50, 47 S. Ct. 19, 71 L. Ed. 157. The questions whether the Jones Act applies to American seamen who sail on foreign vessels, or whether the Jones Act applies to stevedores who enter into contractual relationships with the owners of vessels of foreign registry are not presented. The question presented is whether the Jones Act applies to the case of a stevedore who receives injuries upon a foreign vessel in an American port while engaged in loading

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